Subject: RE: conducting a sane and efficient GPLv3, LGPLv3 Review
From: Walter van Holst <w.van.holst@mitopics.nl>
Date: Thu, 2 Aug 2007 18:18:56 +0200

 Thu, 2 Aug 2007 18:18:56 +0200


> -----Oorspronkelijk bericht-----
> Van: Alexander Terekhov [mailto:alexander.terekhov@gmail.com]
> Onderwerp: Re: conducting a sane and efficient GPLv3, LGPLv3 Review
> Could it be possible that FSF does *not* wish court scrutiny of the
> "pure"*** GPL under copyright and contract law?

Not very likely in my opinion. I've discussed the GPL v2 with a lot of fellow legal
professionals and while most of them would write it in a completely different way, all
of them agreed that the GPL v2 would easily be upheld in court in case of a distributor
of GPL'ed code.

> 1) Perhaps the "pure" GPL is unenforcable under contract law.

It has been enforced twice now in German courts. It would be perfectly enforcable under
Dutch law against distributors. It might run into problems in case of 'normal' end users,
but those problems would be of a largely academic nature.

> 2) Perhaps the "pure" GPL is preempted under 17 USC sec. 301.

I can't answer that since I hardly know anything about US Law, but I am pretty certain
others will fill in pretty soon.

> 3) Perhaps the "pure" GPL is a misuse of copyright.

Hardly likely. Abuse of copyright is possible in cases it affects free speech or quells
competition. Anyone using GPL'ed code in their own products could have known that such
use would require permission in advance of the copyright holder and that such permissions
can have strings attached to them.

> One thing seems certain. FSF is obviously in no hurry to find out.

Why should they? It works in practice, why bother having court cases for something that
has worked fine for over a decade now? Disputes about the GPL tend to be settled out
of court, keep that in mind. Apparantly all lawyers involved in every case did not expect
to have a strong case in court. Court cases usually are about unclear situations, they
tend not to have a very evident solution. The vast majority of GPL cases so fare were
clearly evident enough that the infringing party didn't dare to go to court, despite
the vagueness of the GPL's wording.

Regards,

 Walter